1.

Describe some specific provisions of the constitution of India providing right to

information. Also mention the constitutional validity of RTI Act 2005. Refer recent cases.

Right to Know-Constitutional Prospective

The Right to information is indisputably a fundamental right. It is a facet of “right to
speech and expression” as provided in art 19(1) (a). Right to know has increased the efficiency
of decision making process. It has set a transparency and determines accountability in the
working of public department. Reduction in corruption in public department is due to the
implementation of Right to Information Act, 2005.
The phenomena of right to information gained momentum when Art 19 of the universal
declaration of human right was adopted in 1948 ensuring, “everyone has the right to freedom of
opinion and expression.” This right includes freedom to hold opinions without interference and
to seek, receive and impart information and ideas through any media and regardless of frontiers.
The international covenant on civil and political right 1996 says that, “everyone shall
have the right to freedom of expression, the freedom to seek and impart information and ideas of
all kind, regardless of frontiers”
It is relevant to refer here that in a government of responsibility like ours, it is elementary
that citizens ought to know what their government is doing. They have a right to know every
public Act, everything that is done in a public way, by their public functioning of the
government. It has also stated that exposure to public gaze and scrutiny is one of the surest
means of achieving a clean and healthy administration. The concept of an open government is
said to be the direct emanation from the right to know which seems to be implicit in the right of
speech and expression under article 19(1) (a). The citizens have the right to decide by whom and
by what rules, they shall be governed and they are entitled to call on those who govern on their
behalf , to account for their conduct so that a citizen, prepared to pay requisite fee is entitled to
ask for copies of public documents, to the inspection of such documents.
To provide a freedom to every citizen to access official information the freedom of
Information Act, 2002 has been passed. It has been passed to promote openness, transparency
and accountability in administration and in relation to matters connected therewith and incidental
thereto. This act has been amended in 2005 extending its provision to centre/ state governments,
panchayats, local bodies, recipients of governments and other related matters.
It is important to not here that it provides for furnishing information by the public
information officer on request from the person desirous of obtaining it, on payment of prescribed
fees.
Right to know is the species of the right to speech and expression provided by the Article
19(1) (a) of the constitution of India. A citizen has a fundamental right to access towards
information. It is the duty of the state to protect the fundamental right. But it is also requisite to
provide the opportunities under which this right can be effectively enjoyed by all. It is relevant to
state here that a true democracy cannot exist unless all citizens have a right to participate in the
public functioning.

Right to know a constitutional prospective

The right which provides us the conformant of right to know can be classified in this way.
A) Article 19(1) (a) - freedom to Speech and expression.
B) Article 21-
C) Right to information Act, 2005
 Article 19(1)(a) guarantees to all citizens “the right to freedom of speech and expression”
clause 2 of 19 , at the same time provides , “nothing in sub clause (a) of clause (1) shall affect the
operation of any existing law , to prevent the state from making any law , in so far as, such law
imposes reasonable restriction on the exercise of the right confer by the said sub clause in the
interest of sovereignty and integrity of India , the security of state , friendly relations with foreign
state , public order , decency and morality or in relation to contempt of court , defamation or
incitement to an offence.
Freedom to speech and expression has been held to be basic and indivisible for a
democratic polity, the citizens most cherished and scared right, the prized privilege” it is said to
be a cornerstone of functioning of democracy.
It is the foundation of a democratic society. It is essential to the rule of law and liberty of
citizen’s.. The democratic form of Government, itself demands its citizens, active and intelligent
participation in the affairs of the community. The public discussion with people participation is a
basic feature and rational process of democracy, which distinguishes it from all other forms of
government.
The framers of the constitution recognized the importance of safeguarding this right since
the free flow of opinions and ideas was essential to sustain the collective life of the citizenry.
The right to information, like other right is subject to several exemption/exceptions.
There is rational behind exempting areas like national Security, military, Deployment,
international relations and like from the RTI ambit, the judiciary has no valid reason to claim
such immunity from public gaze. Since Right to Information has turned out to be a grate cheque
on the executives, this is said to be strong case for extending the Act, two sectors like the
judiciary that remained insulated from it.
Though some of the judges were in favor of voluntary disclosure of the assessed by the
Supreme Court judges, the chief justice of India had resisted the judges inclusion in the right to
information. The honorable chief justice of India has expressed recently that he would resist
“tooth nail” any attempt to share “confidential” information about appointments and transfer of
the judges and instead that the office of chief justice of India kept outside the preview of right to
information .

On 2nd September, 2009, a division bench of Delhi high court had given a land mark
ruling that the information on assets declared by the Supreme Court judges in possession of chief
justice of India would come within the ambit of right to information Act, 2005.
Since the chief justice of India held the Information pertaining to Assets declaration by
him and his brother judges, the chief justice of India was held to be a “Public Authority” under
the right to information Act, 2005. The ruling deserves to be lauded because it will promote
transparency and accountability. If the judges support the Right to information like voluntarily
assets disclosure, it would go a long way in enhancing their moral stature ,empower the people
and give a fillip to the movement of the right to know within the meaning of Art-19 (1)(a)
The Apex court ruled in famous case voters right to know antecedents including criminal
past of his candidate contesting election from M.P and MLA was fundamental and basic for
survival of democracy. Democracy cannot survive without free and fare elections, without free
and fairly informed voters, the court said that the voters had right to get material information,
with respect to a candidate contesting election for a post , which was utmost importance in the
democracy was implied in the freedom of speech guaranteed by Article 19(1)(a)
The Apex court ruled that right of a voter to know the bio data of candidate was the
foundation of democracy, a facet of the right to freedom of speech and expression. It would be
the basis of free and fair election which was the basic structure of constitution.
 The court distinguished the right of the voter to know the antecedent of a candidate from
the right to vote and stand as a candidate for election.
Right to Information Act is a weapon in the hand so f a common people. the importance
for the right to information in India were discussed in detail by the supreme court in 1974 in the
land mark judgment of Raj Narain V. Indira Nehru Gandhi, where the court while rejecting the
government's claim of privilege of the disclosure of the security instructions for the prime
minister, “in a government of responsibility like ours there all the agents of the public must be
responsible for their conduct there can be but few sectorates. The people of this country have a
right to know every public Act, everything that is done in public way, by their public
functionaries. They are entitled to know the particulars of the very public transaction in all its
bearing”

We cannot make the government accountable if we do not have basic information

regarding the government decisions and its functioning. The right to information in the Indian
jurisprudence has largely immerged from the freedom of speech and expression guaranteed by
article 19(1) (a) of the Indian constitution. In the words of Justice Bhagwati, the concept of open
government is the direct emanation from the right to know which seems to be implicit in the
right of freedom of speech and expression. The rational of this view in the words of learned
judges is that the right to information or assessed to information is basic to the democratic way
of life. It redefines the relationship between the people and the government by providing critical
information and evidence in the hands of common people.
The right to know is not meant for gratifying idle curiosity or mere inquisitiveness but is
essential for the effective functioning of democracy. Transparency and accountably are sine qua
non in a genuine democracy.
Information is a tool that empowers people to act more meaning fully a electors as well as
elected representative of the people. If the people are well informed they will be more vigilant
and therefore democracy is bound to become more vibrant. Abraham Linkon said at the
Gettysburg address, way back in 1863,”Democracy is government of the people, by the people,
for the people.” It is basic postulate of democracy that government shall be based on consent of
the government and the governed. The consent of governed implies not only that consent shall be
free but also that it shall be grounded on an adequate information and discussion aided by the
widest possible dissemination of information from diverse and antagonistic sources,
consequently citizens must have access to information, “right to know” about the functioning of
the government and public functionaries.
Jeffosen Said, “Information to the people is the most certain and legitimate engine of
government. When a government refuses to put its trust in the people, the people in turn will
withdraw their trust from the people.
The Act in its preamble says to provide for setting up the practical regime of the right to
information under the control of public authority in order to promote transparency and
accountabilities in the working of every public authority.
a) It helps an individual to attain self fulfillment.
b) Assist in discovering of truth.
c) Strengthens the capacity of an individual in participating in decision making.
d) Provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change.

Constitutional Prospective of Right to Information

 Article 39 (a) (b) (c) of the constitution make provision for adequate means of livelihood,
equitable distribution of material resources of community to check concentration of wealth and
means of production.
In Bombay environmental group & others V. Pune cantonment board, the honorable supreme
court of India observed that “real democracy cannot be worked by men sitting at the top. It has to
be worked from below by the people of every village and town. The sovereignty resides in and
flows from the people. So said the father of Nation in whose name we swear. Therefore, “who
will watch the watchman?” is a vexed question before our democracy. For this people ‘s
participation at all levels is a must”
Right to information in other Countries
The first RTI law was enacted by Sweden in 1766, largely motivated by the parliament’s
interest in access to information held by the King. Finland was the next to adopt, in 1953,
followed by the United States, which enacted its first law in 1966, and Norway, which passed its
laws in 1970. The interest in ATI laws took a leap forward when the United States, reeling from
the 1974 Watergate scandal, passed a tough FOI law in 1976, followed by passage by several
western democracies of their own laws (France 1978, Netherlands 1978, Australia 1982, New
Zealand 1982, Canada 1982, Columbia and Denmark 1985, Greece 1986, Austria 1987, Italy
1990). By 1990, the number of countries with RTI/FOI laws had climbed to 13. The new South
Africa constitution specifically provides the right to information in its bill of rights. Columbia in
its 1888 code of political and municipal organization allowed individuals to request documents
held by government agencies. Malaysia operates an online data base system known services link,
through which a person can access information regarding functioning of public administration.
Sweden has been enjoying the right to know since 1810. It was replaced in 1949 by a new Act
which enjoyed the sanctity of being a part o the country’s constitution itself. In Australia, his
freedom of Information Act was enacted in December 1982. It gave citizens more access to the
federal government’s document. The fall of the Berlin Wall and the rapid growth of civil society
groups demanding access to information – about the environment, public health impacts of
accidents and government policies, draft legislation, maladministration, and corruption – gave
impetus to the next wave of enactments, which peaked in the late 1990s and early 2000s.
Between 1992 and 2006, 27 countries in Central and Eastern Europe and the former Soviet
Union passed RTI laws, of which Hungary and Ukraine were among the first. During that same
period through to the present, at least 42 countries in other regions of the world enacted laws. By
February 2010, some 82 countries had national-level right to information laws or regulations in
force – including the population giants of China, India, and Russia, most countries in Europe and
Central Asia, more than half of the countries in Latin America, more than a dozen in Asia and
the Pacific, five countries in Africa, and two in the Middle East. As of April 2010, when
Indonesia’s law entered into force, more than 4.5 billion people lived in countries that include in
their domestic law an enforceable right, at least in theory, to obtain information from their
governments.
As held in the various cases held by honorable supreme court including in Secretary,
Ministry of Information and Broadcasting V. Cricket Association. o Bengal (1995) (2) SCC
161 supreme court while taking into account of news print control order allotment of news print
to news paper was restricted held that such restriction had not only infringed news paper’s right
to freedom of speech but also readers right to read was cut down. The readers right to access the
news papers was his right to information which was implicit in the right to freedom of speech
and expression. Similarly in S.P. Gupta case the honorable Supreme Court observed that,
“people of this country have a right to know every public Act, everything that is done in a public
way, by these these functionaries they are entitled to know the very particulars of every public
transaction. Also in Secretary, Ministry of information and broad casting V. Cricket ass. Of
Bengal, the Supreme Court held that the Air waves were a public property and distribution
among the government media and the private channels should be done on equitable basis as the
freedom of speech included in the right to impart and receive information from electronic media.

Along with article 19(1) (a), the other articles which secures right to information under
Indian constitution are article 311(2) and 22(1). Article 311(2) provides for a government servant
to make out. Why he is being dismissed or removed as being demoted and representation can be
made against the order. On the other hand article 22(1) a person can know the grounds for his
detention. In important case the Supreme Court held that right to information emerges from right
to personal liberty guaranteed by article 21 of constitution.
In State of Uttar Pradesh V. Raj Narain (1975) 4 SCC 428 the court explicitly stated
that It is not in the interest of the public to ‘cover with a veil of secrecy the common routine
business, the responsibility of official to explain and justify their acts is the chief safeguard
against oppression and corruption.

CONSTITUTIONAL VALIDITY OF THE RIGHT TO INFORMATION ACT, 2005

Entry 12 of the Concurrent List of the Seventh Schedule to the Constitution of India gives
legislative power to the Parliament with regard to “Public acts and records and judicial
proceedings.”4 There can be no doubt as to the legislative competence of the Parliament as well
as the State legislature with regard to the subject dealt within this Act. The Right to Information
Act has created the Central Information Commission, the Chief Information Commissioner and
Information Commissioners, Central Public Information Officer, State Information Commission,
State Chief Information Commissioner, State Information Commissioners and State Public
Information Officer to provide information to persons requesting for the information and to
decide the complaints under the Act.
The question before the Court was regarding the constitutional validity of the Right to
Information Act, 2005, in Virender Singh Choudhary v. Union of India & Others.5 The
question raised before the Court was, whether the appointment of Chief Information
Commissioner or Information Commissioner under sections 12(5), 12(6), 15(5) and 15(6) of the
Act is in violation of Article 14 of the Constitution of India. The entire scheme of the Act taken
into consideration for the purpose of not including certain categories is to have neutrality,
objectivity and avoidance of conflict of interest. The Court held that the exclusion of certain
categories is not unreasonable. Hence, the provisions are not hit by Article 14 of the Constitution
of India.
Again, the Supreme Court in Namit Sharma v. Union of India6 dealt with the
constitutional validity of sections 12(5), 12(6), 15(5) and 15(6) of the Right to Information Act,
2005. Sections 12(5) and 12(6) deal with the eligibility criteria for appointment to the post of
Chief Information Commissioner and Central Information Commissioners. Sections 15(5) and
15(6) deal with the appointment to the post of State Chief Information Commissioner and State
Information Commissioners. Under sections 12(5)/15(5) the members of the State and Central
Information Commission should be persons of eminence in public life with wide knowledge and
experience in law, science and technology, social service, management, journalism, mass media
or administration and governance. Furthermore, sections 12(6)/15(6) elaborates that such
members should not be a Member of Parliament or Member of the Legislature of any State or
Union territory or hold any other office of profit or connected with any political party or carrying
on any business or pursuing any profession. The petitioner approached the Hon’ble Supreme
Court with the grievance that even though the members of the Central and State Information
Commissions exercise judicial and quasi-judicial powers under the Act, the eligibility
requirements prescribed for their appointment under the Act are too vague, general, ultra vires
the Constitution, specifically Articles 14, 16 and 19(1)(g) and contrary to the established
principles of law laid down by a plethora of judgments of the Supreme Court.
The Hon’ble Supreme Court discussed the scheme, objects and reasons of the Act, and
also compared the Act with the Freedom of Information Act, 2002. After an elaborate discussion
on the above, the Hon’ble Supreme Court came to the following conclusions:

(a) Constitutional validity of section 12(5)/15(5):

The Hon’ble Supreme Court observed that sections 12(5)/15(5) of the Act have two components:
(i) persons should be of public eminence; and (ii) persons should have knowledge and experience
in their respective fields. Even though these provisions do not provide for any qualifications,
they are not arbitrary as knowledge and experience by implication would mean and include
satisfaction of basic qualification in their respective fields. Sections 12(5)/15(5) have inbuilt
guidelines to the effect that knowledge and experience, being two distinct concepts, should be
construed in their correct perspective. Certainty to vague expressions like ‘social service’, ‘mass
media’ or ‘administration and governance’ can be explained by framing proper rules under
sections 27 and 28 of the Act. Therefore, sections 12(5)/15(5) are not ultra vires the Constitution
of India.

(b) Constitutional validity of section 12(6)/15(6):

Section 12(6)/15(6) of the Act state that the members of the Information Commissions should
not hold ministerial positions, office of profit or be connected with a political party or carry on
business or profession whereas sections 12(5)/15(5) requires the member to have eminence in
public life and wide knowledge and experience in the specified field. When sections 12(5)/15(5)
and section 12(6)/15(6) are read together, the purpose of sections 12(5)/15(5) is defeated as
virtually no person will be able to become a member of the Information Commission. Sections
12(6)/15(6) lacks clarity, reasonable classification and has no nexus to the object of the Act and
if construed on its plain language, it would result in defeating the provisions of sections
12(5)/15(5) to some extent. Also, these clauses do not specify any time period for which a person
should not have carried on any business or profession. The Supreme Court has reasoned that
these disqualifications are not pre-appointment but operate post-appointment.

(c) Quasi-Judicial Authority:

The Information Commission is vested with penal powers under the Act which include the power
to impose fines and conduct enquiries. Under the Act, the Commissions determine the outcome
of disputes between the parties by striking a balance between right to privacy and right to
information. Therefore, the powers of Information Commissions are adjudicatory in nature and
not merely administrative. This requires performance of judicial functions of hearing a dispute
between two parties, weighing the arguments of the parties and pronouncing a decision in
accordance with the rule of law. The Information Commissions are, therefore, quasi-judicial
authority or tribunals performing judicial functions.

(d) Information Commissions supplant the Civil Courts:

Section 23 of the Act ousts the jurisdiction of civil courts in respect of any suit, application or
other proceedings in respect of any order made under the Act. The complete code for appeal and
challenge has been laid out in the Act. The appeal from the decision of the information officer
lies with the first appellate authority and a subsequent second appeal to the Information
Commission. Exclusion of jurisdiction of civil courts does not preclude the right to approach the
High Court and the Supreme Court under their writ jurisdictions. The Hon’ble Supreme Court7
on several occasions has held that tribunals exercising quasi-judicial functions should have
legally trained and experienced members because they are required to supplant the High Court.

(e) Structure of Information Commission:

(i) The Supreme Court held that the Information Commissions will work in a bench of two
members, one judicial member and another qualified person from the specified field (expert
member).
(ii) The judicial member should have degree in law and experience in performing judicial
functions. A law officer or a lawyer who has practiced law at least for a period of twenty years
will be eligible for appointment as a judicial member. Such lawyer should also have experience
in social work. Preference should be given to a person who is or has been a Judge of the High
Court for appointment as Information Commissioner. The Chief Information Commissioner at
the Centre or State level should only be a person who is or has been a Chief Justice of the High
Court/A Judge of the Supreme Court. The judicial members will be appointed in consultation
with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as
the case may be.
(iii) Under section 12(3) of the Act, the members of the Information Commissions are to be
appointed by the President upon the recommendations of the High Powered Committee. The Act
is silent upon the procedure to be followed. The Hon’ble Supreme Court directed that a panel of
prospective members will be created by the Department of Personnel and Training or the
concerned state level ministry, as the case may be after due advertisement. The panel will be
placed before the High Powered Committee to make selections in accordance with section 12(3)
of the Act.
(iv) The Supreme Court recommended that first appellate authority under the Act should be a
person possessing a degree in law or having adequate knowledge and experience in the field of
law.
(f) Amendments to the Act and framing of rules:
The Supreme Court has laid down the provisions of sections 12(5), 12(6), 15(5) and 15(6) to up
hold their constitutional validity. However, the Supreme Court has observed that it is necessary
for the legislature to suitably amend the Act. The Supreme Court also directed the Central
Government and the competent authority to frame rules within 6 months from the date of the
judgment to make the practice and procedure of the Information Commissions in accordance
with rule of law.
(g) Rule of precedence:
In its judgment the Supreme Court has also held that the Information Commission must bear in
mind the rule of precedence in respect of not only Supreme Court and High Court judgments but
judgments of larger Information Commission benches in case of a smaller bench.
The field of “public acts and records” is already occupied by certain laws relating to
“right to Information” passed by many State Legislatures. The Official Secrets Act, 1923, also
covers the same field of public records, documents, manuscripts and files. However, section 22
of the Right to Information Act provides that the provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in the Official Secrets Act and in any
other law for the time being in force or in any instrument having effect by virtue of any law other
than this Act. Wherever there is inconsistency between the existing law and this Act, the RTI Act
shall prevail.
2. Describe in detail the historical background of the movements for the "Right to
Information Act 2005". Highlight in detail the two burning instances with reference to
regulate the "Right to Information Act 2005" in India.
The Constitution of India has been around for 70 years now, and has since been amended
a number of times to accommodate the changing mind set of developing India, and the
interpretation of this document, especially of the Articles related to Fundamental Rights has been
diverse. One such interpretation in pretty recent times has been the Right To Information, which
hasn't been expressly stated in any portion, but can be derived from Article 19(1)(a)and Article
21of the Constitution of India itself. We are all aware how "absolute power corrupts absolutely"
and we can safely assume that it is not a mere philosophical phrase. The journey from a demand
of information to it becoming a Bill to finally a lawful Right has been in phases i.e. “from
resistance to disclose any information whatsoever, to state-level Right To Information Acts, to a
roughly-made, protective of public authorities Freedom Of Information Act in 2002 and finally,
arriving at what exists as the Right To Information Act today Having completed around 15 years
in existence, it is notable is that it hasn't been subjected to any amendments whatsoever. Here is
an attempted analysis of the same.

Information empowers and enables people; pushes them towards exercising their legal,
social, economic and political rights. Almost every society has recognised the same by way of
putting in place the mechanisms for free flow of information and ideas so that people can access
them whenever it is required without too many procedural, or otherwise, hassles.

Dr. Manmohan Singh, the Prime Minister of India, when bringing to light India's first
significant step towards anti-corruption - The Right to Information Bill, said:

"The passage of the Bill will see the dawn of a new era in our processes of governance,
an era of performance and efficiency, benefits of growth will flow to all sections of the society,
eliminate the scourge of corruption, and will bring the common man's concern to the heart of all
processes of governance and fulfill the hopes of the founding fathers of our Republic."

The most accurate summation of the value of the spreading awareness among citizens
and creating a culture of transparency and accountability so as to make the system of governance
of a nation closer to impeccability would probably be the quote above. The World Bank
document of 1992 on Governance and Development in its quest for 'good governance' identifies
accountability as well as transparency and information to constitute two of the seven specific
aspects of 'governance'. Apart from this, we have had minds like Jeremy Bentham, Patrick
Henry, Aruna Roy, Thomas Jefferson and the Father of our Nation, Mahatma Gandhi, think alike
on this issue, as evident from their publicly expressed views on the same. A comprehensive
outlook on the Right to Information Act, 2005(India), a cutting edge legal issue – will most
definitely result in the conclusion that only information could have been, is and will continue to
be the pathway taken, on which prudent and responsible treading towards mutual compliance and
thus, better governance fall.
 Information is a potent tool for countering corruption. The visibility of deprived
communities' increases on the political map, and their interests can be realized. We indeed have
taken giant leaps towards accessing information to the very core of its existence, but tracing this
growth from stages of nothingness to the various perspectives on what we have today is
important; quite similar to the importance of precedents in law, in general. A government "of the
people, by the people and for the people" is the spirit and essence of a democracy and its
accountability towards people cannot be explained better than those words of Abraham Lincoln.

In the mid-90s, while the weapon of secrecy was being used by the executive in
governance to defeat the rightful claims of the governed, the judiciary destroyed this weapon in
favor of an open, democratic and welfare form of governance.[1] The Constitution of India does
not explicitly provide for a "right" to information as such, but it is one of the most effective
judicial interpretations of the Constitution by the Supreme Court. The context of its view is the
Right to Freedom and Speech and Expression [Article 19(1)] and the Right to Life (Article 21).
It has been so held that these include the right to acquire and disseminate information.

Tracing the growth of this particular legally enforceable claim will require an in-depth
study of several issues that initially cropped up at the grass-root levels, and of several of similar
nature that got the international circle of politics up and about so as to find means to fulfill the
democratic obligations to provide information to the citizens when they would seek it, for
whatever the reason may be, but primarily focusing on societal benefit in one way or the other.

The Indian Scenario

In India, it all started with petitions of the press to the Supreme Court, relating to issues
of enforcement of certain logistical implications of the right to freedom of speech and
expression. Access to information was realized as being a key tool to fight corruption and
wrongdoing, the public has a right to scrutinize the actions of its leaders and engage them into a
full and open debate - the free flow information is a must for a society so diverse in its mind-sets.
The Right To Information Act, 2005(India), has gradually become one of what are defined as
"national movement" and has been an emphatic statement for such other rights-based
legislations. Sections 4(1), 5(1), 5(2), 12, 13, 15, 16, 24, 27 and 28 of this Act came into force on
15thJune, 2005; and he remaining provisions found them being put forward for practical use on
12th October, 2005.

Interestingly, instead of the birth of representative democracy, it was its subsequent

failures that gave birth and impetus to the transparency regime. There was an urge amongst the
people to move towards participative democracy instead. On October 12, 2005, a person called
Shahid Raza Burney submitted India's first ever Right To Information application to a police
station in Pune [6]and thus we entered the RTI age, formally. But before Mr. Burney could
actually act and make use of his right, there had been a background of growth and development
in the Indian arena of transparency of those answerable to the public.
 Three kinds of stakeholders were a part of the struggle for a right to access information
that was inherently the public's but was kept from them, in the 1990s.

The rural poor's basic economic rights and access to government schemes were a burning
question and concern, and several movements with their all-powerful and impactful leaders
strived to achieve the right to information for them. The relevance and importance of
transparency came into the spotlight on a national platform when small, regional movements for
these rights at the state levels brought to the forefront, how landless workers in rural areas were
often cheated and not paid their full wages. The paymasters were government officials who
claimed that the workers had worked for less days then they actually had, and the latter could not
challenge the claim as access to the attendance register in which they had affixed their
thumbprints every day they worked was denied to them, in the garb of them being "confidential
government records".

The second group comprised of activists working for the benefit of the society in conflict
prone areas of India. They joined hands to fight for transparency in the system of governance,
and for the human rights of various deprived individuals and groups. Their main argument was
that their efforts to prevent felonious detentions, human rights abuses etc. were forestalled
because they were denied access to the relevant information.

The third group of supporters was environmentalists. Concerned about the rapid
destruction and degradation of the environment, they propagated their purview of the importance
of access to the details of information regarding any developmental measures being taken, and its
environmental impact.

Significant others in the fight for transparency were various professionals, especially
journalists, lawyers, academics, and some retired and serving civil servants.

Freedom to Information Act, 2000 “A Step towards the Greater Good":-

The Central Freedom of Information Act 2002 was passed in December 2002 and
received the Presidential assent in January 2003.Some states, apart from the those already
discussed above had their individual State Right To Information Acts by then - Goa (1997),
Karnataka (2000),Delhi (2001), Assam (2002),Madhya Pradesh (2003) and Jammu & Kashmir
(2004).

The Mazdoor Kisan Shakti Sangathan (MKSS) which had worked towards having finally
given Rajasthan its own Right To Information Act in 2000, had also given a push to the birth of
the National Campaign on People's Right to Information (NCPRI), constituted in 1996 in New
Delhi. The NCPRI aimed to provide active support to struggles for the right to information at the
grass-root levels, and to lobby the Central government to enact and implement an effective
access to information legislation. The Consumer Education and Research Council (CERC) in
1993, had proposed a draft RTI law based on a nationalized, Central level idea; following which,
Justice P. B. Sawant headed the Press Council of India and they drafted a model law on the same
to the Government of India in 1996, which was later updated and renamed the PCI-NIRD
Freedom of Information Bill 1997. Unfortunately, this draft law wasn't critically considered by
the Government. Then, the Shourie Committee, a working group under the chairmanship of Mr.
H. D. Shourie, was set up by the Central Government and given the mandate to formally prepare
a draft legislation on freedom of information. Meanwhile, Mr. Ram Jethmalani, the then Union
Minister for Urban Development, issued an administrative order enabling citizens to inspect and
receive photocopies of files in his Ministry, in 1999. Yet again, very disappointingly, the Cabinet
Secretary did not permit this order to come into effect.

The Freedom of Information Bill 2000 incorporated the Shourie Committee's draft, but
that somehow was even less satisfactory a Bill than the Shourie Committee's initial one
Parliamentary Standing Committee on Home Affairs, in consultation with civil society groups
discussed the 2000 Bill as was sent to the former, before submitting its Report in July 2001. The
Government was urged to address the flaws in the draft Bill, as had been pointed out. The
detriment of the final contents of the Bill was clearly a direct consequence of not considering any
of those recommended amendments of the flaws. It was introduced in Parliament in 2002 just as
it was, and was passed in December 2002. The Presidential assent for it was received in January
2003, and the Bill as finally stood as the Freedom of Information Act 2002. despite being passed
by both houses of Parliament and having received presidential assent, this act was never notified
and therefore never became effective. despite being passed by both houses of Parliament and
having received presidential assent, this act was never notified and therefore never became
effective.

The Change in Government, and What Followed:-

In May 2004, the United Progressive Alliance (UPA), led by the Congress Party, came to
power at the national level, displacing the Bharatiya Janata Party led National Democratic
Alliance government. The UPA government brought out a Common Minimum Programme
(CMP) which promised, among other things, "to provide a government that is corruption-free,
transparent and accountable at all times…" and to make the Right to Information Act "more
progressive, participatory and meaningful". The UPA government also set up a National
Advisory Council (NAC), to monitor the implementation of the CMP. This council had leaders
of various people's movements, including the right to information movement, as members.

In the meantime, a public interest litigation case being pursued by Advocate Prashant
Bhushan on behalf of the NCPRI and Centre for Public Interest Litigation since 2002, tried to
compel the Government to notify an effective law to provide Indians with access to information
from public servants immediately. The case was heard by the Supreme Court on 20 July 2004.
The Supreme Court's Order set a deadline of 15 September 2004 for the Central Government to
advise when the Act will be notified and if not, when interim Administrative Guidelines would
be issued.
 Seizing the opportunity, in August 2004, the National Campaign for People's Right to
Information (NCPRI), formulated a set of suggested amendments to the 2002 Freedom of
Information Act. These amendments, designed to strengthen and make more effective the 2002
Act, were based on extensive discussions with civil society groups working on transparency and
other related issues. These suggested amendments were forwarded to the NAC, which endorsed
most of them and forwarded them to the Prime Minister of India for further action. On 12 August
2004, the Department of Personnel and Training, Ministry of Personnel, Public Grievances and
Pensions finally released Draft Rules under the Freedom of Information Act 2002. CHRI issued
a CHRI Press Release on the Draft Rules on 14 August, 2004. Some intense lobbying paid off
and after a tense and pivotal meeting with the Prime Minister (arranged by a former Prime
Minister, who was also present and supportive), in the middle of December 2004, the
Government agreed to introduce in Parliament a fresh RTI Bill along the lines recommended by
the NAC. Government of India introduced a revised Right to Information Bill in Parliament on
22 December 2004.

The issue that cropped up thereafter was that the 2004 Bill was applicable only to the
central (federal) government, and not to the states, and several of the NAC's recommendations
had been disregarded. This omission was particularly significant as most of the information that
was of relevance to the common person, especially the rural and urban poor, was with state
governments and not with the Government of India. Consequently, there was a sharp reaction
from civil society groups, while the government set up a group of ministers to review the bill,
and the Speaker of the Lok Sabha (the lower house of Parliament) referred the RTI Bill to the
concerned standing committee of Parliament. Soon after, the NAC met and expressed, in a letter
to the Prime Minister, their unanimous support for their original recommendations.
Representatives of the NCPRI and various other civil society groups sent in written submissions
to the Parliamentary Committee and many were invited to give verbal evidence. The group of
Ministers, chaired by the senior minister, Shri Pranab Mukherjee, was also lobbied. these efforts
were mostly successful and the Parliamentary Committee and Group of Ministers recommended
the restitution of most of the provisions that had been deleted, including applicability to states.
The Right to Information Bill, as amended, was passed by both houses of the Indian Parliament
in May 2005, got Presidential assent on 15 June 2005, and became fully operational from 13
October 2005.

The journey of the Right to Information from a "Bill" to an "Act" may be divided into
three phases.

PHASE 1-1975 to 1996- There were infrequent, irregular demands to public and private
authorities for information, from various constituent social groups, coming to a crescendo in
more focused ones in the mid-1980s. Grassroots movements in rural Rajasthan in the early 1990s
were a major push. The National Campaign for People's Right to Information (NCPRI) was
formed in 1996, and that culminated this phase. Various judicial orders in support of
transparency were seen during this period.
PHASE 2- “1996 to 2005- This phase is marked by the formulation of a draft RTI bill,
spearheaded by the NCPRI. The subsequent processing by the government and the Parliament of
the same is too, a bit of it. Rapid growth in size and influence of the RTI movement in India was
seen, and as the National RTI Act was passed in 2005, this phase came to a close. This is also the
period that sees a large number of countries across the world enact transparency laws.

PHASE 3- “2005 to (present)- If we guide our focus on the time from the end of 2005 to the
present, we will see that the consolidation of the act and on pushing for proper implementation
has been taken up as the new challenge. Part of the effort has also been to afford protection to the
RTI Act from any attempt to weaken it by those in power and being called "public" authorities.
To push the boundaries of the RTI regime and make it deeper and wider in coverage,
participation, and impact is a matter gaining rapid importance. The increasing efforts to look at
the Constitutional perspective and newer applications bringing out loopholes in the form of
relevant questions can be seen here.

It is to be noted again, that while the debate on a national law of Right to Information was raging
in the nation, a few States started enforcing their own Right to Information laws. Here's how
several states, as mentioned above, went about it before the Central Legislation was declared
officially operating, in 2002-

Goa: Having the fewest categories of exceptions, it has been noted as one of the most
progressive state legislations for the Right To Information. Recognising the absolute necessity of
supplying of information, it had the provision for urgent processing of requests pertaining to life
and liberty, and an exclusive penalty clause for delays. Most importantly, it also applied to
private bodies executing government works. The only recognisable negative point was this - it
had no provision for pro-active disclosure by the government.

Tamil Nadu: It is notable that this Act provided for the provision of information to those asking
for it within a period of 30 days from when it had been sought. At the time of its launch, all
Public Distribution System shops in the state were asked to display details of stocks available, as
according to the provisions of the legislation. All government departments also brought out
citizens' charters listing information on what the public was entitled to know and get.

Karnataka: 12 categories of information being covered by some standard exception clauses

were contained in this Act. Provisions for pro-active disclosure were limited, but it contained a
penalty clause for delay in supply of information and provided for an appeal to an independent
tribunal.

Delhi: The law was made along the lines of the Goa Right To Information Act. It contained the
standard exceptions and provided for an appeal to an independent body. The establishment of an
advisory body was also provided for, known as the State Council for Right to Information. Apart
from bare minimum exceptions, the residents of the capital could seek any type of information
after paying a nominal fee, from the civic body. The corporation had a month's time to provide
the same, failing which the concerned officials could be penalised. If the information was found
to be false or had been subjected to deliberate tampering, a proof of the same could lead to the
information-provider being fined.

Rajasthan: After five years of teetering, the Rajasthan Right to Information Act was finally
passed in the year 2000. Focusing at the grass-root levels, village-based public hearings called
Jan Sunwais were organised by the Mazdoor Kisaan Shakti Sangathan (MKSS). The aim was to
give space and opportunity to the rural poor to proclaim their priorities, declare their grievances
against the public authorities operating in the area, and suggest changes. The press, jurists and
other such people were invited to these sessions. Jan Sunwais lead to the emergence of four
major demands of these rural poor, those being: (1) Transparency of panchayat functioning; (2)
accountability of officials; (3) social audit; and (4) redressal of grievances. The Bill was
eventually passed, however, placed around 19 restrictions on the right of access to information. It
had weak penalty provisions, and gave immense discretionary power to bureaucrats. It was the
Jan Sunwais that exposed issues like corruption that suffused several panchayats, and also
agitated extensively for the right to food after the revelation of hunger and starvation-related
deaths in drought-ravaged districts.

Maharashtra: The voice from Rajasthan echoed in Maharashtra and following sustained

pressure from social activist and anti-corruption crusader Anna Hazare, the Maharashtra Right to
Information Bill was passed by the Maharashtra assembly. The Act not only brought government
and semi-government bodies within its purview but also registered societies (including
educational institutions), cooperatives, and state public sector units. Public Information Officers
who fail to perform their duties may be fined up to Rs. 250 for each day's delay in furnishing
information. Willfully providing incorrect and misleading information or information that was
incomplete, the appellate authority hearing the matter may impose a fine of up to Rs. 2,000 on
the Information Officer. He/she may also be subject to internal disciplinary action. There was
also a provision for setting up of a council to monitor the workings of the Act at least once in
every 6 months, on a public scale. The council was to comprise of members of the press, senior
members of government, and representatives of NGOs. Exclusion clauses were reduced to bare
minimum of ten
3. Analyze critically in detail mentioning the relation between RTI and corruption. How
RTI has developed as a tool to eradicate corruption? Refer cases and scams relating to
corruption.

The government of India enacted the landmark Right to Information Act on 15th June
2005 and got assented to from 12th October, 2005. The right of access to information is an
important human right, necessary for the enjoyment of other human rights. From then onwards,
Citizens of the country have been effectively using the Act to tackle corruption and also to make
a transparent and accountable government. Every day approx 4,800 applications are filed to
access information from the government across India. The first decadal study conducted after
Right to Information (RTI) Act implemented in October 2005 has revealed that over 1.75 crore
applications have been filed with one-fourth being requests to the Centre.
A study conducted by Commonwealth Human Rights Initiative (CHRI), exclusively
accessed by Economic Times, reveals that 27.2% (47.66 lakh) of the total RTIs filed between
2005 and 2015 were to the different ministries and departments under the Centre. Aruna Roy, a
social activist and founder of the Mazdoor Kisan Shakti Sangthan was the main architect behind
the RTI Act 2005 regarded, India‘s RTI Act as the most fundamental law this country has ever
seen as it can be used to access information from the local panchayat to parliament from a small
village to Delhi, from a ration shop to the 2G Scam”. Clearly, the Act has laid emphasis on good
governance, of which the major elements that have been identified are: informed citizenry for
encouraging people’s participation in development process, transparency, accountability and
reduction in corruption. Thus, the major objectives of the Act are:
1. Greater Transparency in functioning of public authorities;
2. Informed citizenry for promotion of partnership between citizens and the Government in
decision making process;
3. Improvement in accountability and performance of the Government;
4. Reduction in corruption in the Government departments.
All these parameters are critical elements of good governance, which entails full
accountability to stakeholders, who are partners in development process. And, have the powers
to enforce accepted policies, common norms and recognized bench marks. It is expected,
therefore, that the citizens, armed with information obtained through their exercise of right to
know, would be able to protect life and liberty as well as secure equity and justice before the law.
An attempt is therefore made below to examine the extent to which the RTI has been successful
in influencing the above factors in the desirable direction.
Access to information appears to empower the poor to the point where they receive
almost the same treatment as middle-class –individuals at the hands of civil servant. This is that
payment of a bribe can‘t do. It is a potent weapon to fight against corruption arbitrariness and
misuse of power. It is a vital tool for good governance and this law has been used to tackle a high
profile of corruption. RTI spilt all over the parts of the country and reduced the corruption.
 The political mobilization against corruption started with the RTI. The culture of secrecy,
as known, encourages the government officials to indulge in corrupt practices, which result in
lower investments due to misuse of power and diversion of funds for private purposes. As a
result, the government’s social spending yields no worthwhile benefits, because, for instance, the
teachers do not teach, doctors and nurses do not attend health centres, ration card holders do not
receive subsidized food grains and, thus, livelihood support is denied, and the promised jobs are
not provided to the poor, who are assured of income support. In the process, it perpetuates
poverty and harms the poor. It creates an environment of distrust between the people and the
government, which impinge upon the development and jeopardize democratic governance. The
legislation on RTI can act like an antidote to vested interests which try to conceal or misinterpret
information or which try to manipulate the media directly or indirectly to plant misinformation.
The Right to Information Act 2005 has provided us the right to get information from the
government. Through this we can now expose corruption and also bring to light those duties that
are not being performed by the officials. Also, in some countries RTI has been seen as part of the
anti-corruption or state modernization agendas (for instance Mexico and Chile), in South Asia,
particularly in India. Through all this we can also seek solutions to our problems. We can ask
information about projects and plans. We can inspect files and check for any misappropriations.
The government spends a huge amount of money for development work. We can ask for
information about the work being done in our area. Information relating to tenders, agreements,
payments and estimates of engineering work etc can be obtained with the help of the Right to
information Act. Besides these, information can be sought on the following-
(1) You can demand samples of materials used for the construction of roads, drains and buildings
etc.
(2)You can demand an inspection of any social development work, work in progress or
information related to any completed work.
(3)You can demand an inspection of government documents, maps for the construction, registers
and records.
(4)You can demand information related to the progress made on any complaint filed by you in
the recent past.
Experiences suggest that in the states where the Right to Information Act has been
implemented, it has become an important tool of social development and governance. Tackling
pendency at the Information Commission and stringent punishment to guilty officials as well as
massive awareness campaigns among the masses for proper use of RTI constitutes the key to the
success of RTI regime.
Under the RTI regime, there is unprecedented transparency in the working of public
departments. There is thus better understanding of the decision making process and greater
accountability of government. This has led to reduction in corruption in the country as evident
from the following:
i) The Transparency International (TI) had reported that perceived corruption in India has
declined, due mainly to the implementation of the RTI Act. This is evident from corruption
reduction score of 3.4 (out of 10) in 2008, after an initial rise of 3.5 in 2007, compared to 2.99 in
2006, which indicate a decline in corruption to the extent of 15%.14 India has marginally
improved its ranking in the graft watchdog Transparency International's corruption perception
index for 2016 got a score of 40 out of 100 and has improved by two points as in 2015 the
country had scored 38.15
ii) The TI-CMS has recently accomplished an all India survey study of the poor below the
poverty line. The views of the poor have been elicited in respect of all the flagship programmes
that have been implemented for alleviation of poverty. At least 40 per cent of the respondents
have reported that corruption has declined.
iii) It has also been observed that wherever NGOs are actively involved in the development
activities, the perceived corruption is abysmally low.
RTI SUCCESS STORIES
1. Adarsh Society Scam: The applications filed by RTI activists like Yogacharya Anandji and
Simpreet Singh in 2008 were instrumental in bringing to light links between politicians and
military officials, among others. The 31-storey building, which had permission for six floors
only, was originally meant to house war widows and veterans. Instead, the flats went to several
politicians, bureaucrats and their relatives. The scandal has already led to the resignation of
Ashok Chavan, the former chief minister of Maharashtra. Other state officials are also under the
scanner.
2. Public Distribution Scam in Assam: In 2007, members of an anti-corruption non-
governmental organization based in Assam, the Krishak Mukti Sangram Samiti, filed an RTI
request that revealed irregularities in the distribution of food meant for people below the poverty
line. The allegations of corruption were probed and several government officials arrested.
3. Appropriation of Relief Funds: Information obtained through an RTI application by an NGO
based in Punjab, in 2008 revealed that bureaucrats heading local branches of the Indian Red
Cross Society used money intended for victims of the Kargil war and natural disasters to buy
cars, air-conditioners and pay for hotel bills – among other things. Local courts charged the
officials found responsible with fraud and the funds were transferred to the Prime Minister's
Relief Fund.
4. IIM’s Admission Criteria: Vaishnavi Kasturi a visually-impaired student, in 2007 was
denied a seat in the Indian Institute of Management in Bangalore, one of the country's premier
management institutes - despite her impressive score at the entrance examination. Ms. Kasturi
wanted to know why, and wondered whether it was because of her physical disability. She filed
an RTI application to request the institute to disclose their selection process. Although she failed
to gain admission to the institute, her RTI application meant that IIM had to make its admission
criteria public.
4. Enumerate the obligations of the 'Public Authority' under section 4 of the RTI Act 2005.
How far it is been implemented in Govt. Deptts since 15 years. Analyse whether public is
benefited as per the provisions of this section.
Section 4 of the Act is the backbone of the rights of the citizens. The Section 4 mandates
that every public authority shall be bound to maintain its records and the same shall be indexed
in a manner and form which could be easily accessible when an information is ought under the
Act. Hence the public authorities are bound to ensure that the documents and records are
maintained properly and the wherever it is possible the same shall have to be computerized and
the network shall disseminate the information throughout the country. Section 4(1)(a) clearly
states that such maintenance and posting of such information to the public shall be made in order
to facilitate that the information is accessible from any part of the country. Section 4(1)(b)20
gave 120 days to enable the public authorities to publish certain information prescribed under the
sub section. This sub section was enacted to enable the citizens to get to know the information
about as many information as possible in the websites of the public authorities and thereby one
may not undergo the process of application to PIO etc to get information. He can simply go the
public authorities' websites and access the information.

But in reality many public authorities have not published as mandated under the sub
section. In fact many high profile public offices did not even publish the details of the PIOs in
their offices. One such institution is Anna University, Chennai. The website of Anna university
http://www.annauniv.edu/21 does not contain any link or information relating to the RTI Act or
any details as mandated under the sub section. It more fully looks like the Anna University is
completely and absolutely exempted under the Act even with regard to publishing of information
under the Act. But no such exemption or whatsoever was granted to the Anna University. Thus
even the educational institutions in the country are not following the duties under the Act.

Every public authority except that those are exempted under section 24 of the RTI Act
have to publish the information. A bare perusal of those information required under the Act
would show that the legislature intended transparency in every public department and the public
ought to know the decision making process of the government department. This sub section also
states that the amount of expenditure met by the public authority including the remuneration of
the employees of the department have to be published.

Section 4(1)(b) based on the principle of universal disclosure of information which is a

onetime burden for the public authorities but would eventually save the time of public
information in future. Instead of furnishing information to every single applicant this wide
disclosure would enable citizens to know the information and the decision making process of the
government department by simply going through the website of the public authority and thereby
the time and cost for both the public authority as well as individual citizen also would be saved.

The sub section makes obligatory on the part of the public authority to disclose
information relating to the details of facilities provided under the Act to the citizens, names and
designation of the public information officers in the department. All these details have to be
periodically updated as and when the changes are being made in the structure or the decisions of
the government.

Section 4(1)(c) imposes statutory obligation on the public authorities to disclose the
policies of the government and all the relevant facts leading to the formulation of the policies
along with the announcements of the decisions which affect the public. The term affecting public
has to be construed wide meaning and any decision affecting the citizens of the country are to be
taken within the meaning of affecting the public. The term need not be given negative meaning
and cannot say that only those decisions of the government which adversely affect the public
ought to be published. But term shall have to be read in ejusdem generis and while reading the
entire legislation the terms tend to mean that all decisions whether adversely or favorably affect
the public are to be published by the government.

Section 4(1)(d) of the RTI Act states that the public authorities while taking decisions
which are in the nature of administrative decision or quasi judicial decisions to give reasons to
the aggrieved persons. It means to provide that the orders and decisions passed by the public
authorities shall have to contain reasons and not to pass orders mechanically and not to pass
cryptographic orders.

The legislature's intention of making so much of information by voluntary means by the

public authorities are explicit in section 4(2). It says that the public authorities have to provide
suo motu information so that the public have minimum resort to the use of the Act to get the
information. The Act imposes further obligation on PIOs to furnish information considering the
easy mode and the way in which less cost would be incurred.

The act though not as a strict obligation but prescribes that the information as far as
practicable shall be in electronic format with the central or state information commission. The
explanation to section 4 indeed a necessary one in order to clarify the position about the meaning
of the word "disseminated". Thus the publishing not only restricted to their own website of the
public authority but also to the news papers, public announcements , media broadcast and any
other means which are easily accessible to public.

SECTION 4: OBLIGATIONS OF PUBLIC AUTHORITIES CASES.

1. Central Information Commission is not a court and certainly not a body which exercises
plenary jurisdiction under RTI Act.

The flow of information is not to be an unregulated flood. It needs to be controlled just as

the flow of water is controlled by a tap. Those empowered to handle this 'tap' of information are
imbued with great power. Under the RTI Act, this power is to be exercised by the Information
Commissions (State and Central). But, the power is clearly not plenary, unrestricted, limitless or
unguided. The Information Commissions are set up under the said Act and they have to perform
their functions and duties within the precincts marked out by the legislature. Central Information
Commission is a creature of statute and its powers and functions were circumscribed by statute
itself. It cannot summon person s to give oral evidence or written evidence or to produce any
documents or things in its possession. However, it can direct a person to remain present for other
reasons. (Delhi Development Authority Vs. Central Information Commission and Anr. High
court of Delhi.W.P (C) 12714/2009). .

2. Public authority is having an obligation to provide such information which is recorded

and stored, but not the thinking process.

A citizen has a right to receive "information", which is in any form, including records,
documents, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts,
reports, papers, samples, models, data material held in any electronic form and information in
relation to any private body which can be accessed by a public authority under any other law for
the time being in force. Information does not mean every information, but it is only such
information, which is recorded and stored and circulated by the public authority. A citizen has a
right to receive such information, which is held by or under the control of any public authority
and the public authorities have an obligation to provide reasons for its administrative or quasi-
judicial decisions to the affected persons. Khanapuram GandaiaS/o Late Balaiah Vs.The
Administrative Officer, Ranga Reddy District Courts Cum Assistant State Public Information
Officer Under the Right to the Information Act 2005, The Registrar General Cum Appellate
Authority under the Right to Information Act 2005, High Court of A.P., The A.P. State
Information Commission rep. by its Registrar and M. Seetharama Murthy S/o Chittenna, District
Judge and Presently Registrar General, High Court of A.P.( Writ Petition No. 28810 of 2008).

3. CIC’s jurisdiction do not extend to interpretation of court orders.

There is no exception of the view taken by the CIC that its jurisdiction did not extend to
interpreting court orders. The CIC cannot be asked to interpret such orders as they do not fall
within its normal functioning. It is not charged with the duty of implementing such court orders.
One could have understood the proceeding and giving an interpretation - right or wrong - which
could have been the subject matter of proceedings before this Court. However the limited
mandate conferred upon the CIC is to ensure the provisions of the Act for supply of information
to concerned applicants are dealt with and wherever required, implemented, according to law.
( Ajay Kumar Goel Vs.Cental Information Comission and Ors,W.P.(C) No. 3464 of 2007, High
Court of Delhi).
5. Describe in detail the exemption from disclosure of information under section 8 (1) of
the RTI Act 2005. Analyze critically its provisions whether Govt Deptts are denying
information misusing the provisions of this section. Refer cases.

Section 8 in 'The Right to Information Act, 2005'

8. Exemption from disclosure of information. —

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any
citizen, —

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of
India, the security, strategic, scientific or economic interests of the State, relation with foreign
State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law or
tribunal or the disclosure of which may constitute contempt of court;

(c) information, the disclosure of which would cause a breach of privilege of Parliament or the
State Legislature;

(d) information including commercial confidence, trade secrets or intellectual property, the
disclosure of which would harm the competitive position of a third party, unless the competent
authority is satisfied that larger public interest warrants the disclosure of such information;

(e) information available to a person in his fiduciary relationship, unless the competent authority
is satisfied that the larger public interest warrants the disclosure of such information;

(f) information received in confidence from foreign government;

(g) information, the disclosure of which would endanger the life or physical safety of any person
or identify the source of information or assistance given in confidence for law enforcement or
security purposes;

(h) information which would impede the process of investigation or apprehension or prosecution
of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and
other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the
material on the basis of which the decisions were taken shall be made public after the decision
has been taken, and the matter is complete, or over: Provided further that those matters which
come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has not relationship
to any public activity or interest, or which would cause unwarranted invasion of the privacy of
the individual unless the Central Public Information Officer or the State Public Information
Officer or the appellate authority, as the case may be, is satisfied that the larger public interest
justifies the disclosure of such information: Provided that the information, which cannot be
denied to the Parliament or a State Legislature shall not be denied to any person.

(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the
exemptions permissible in accordance with sub-section (1), a public authority may allow access
to information, if public interest in disclosure outweighs the harm to the protected interests.

(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating
to any occurrence, event or matter which has taken place, occurred or happened twenty years
before the date on which any request is made under section 6 shall be provided to any person
making a request under that section: Provided that where any question arises as to the date from
which said period of twenty years has to be computed, the decision of the Central Government
shall be final, subject to the usual appeals provided for in this Act.

ANALYSIS

 National Security or Sovereignty: As explained above, there is some information, which

relates to India's national security, which could genuinely cause harm if it was released to the
public. For example, information published during a conflict, detailing the number of soldiers
defending a boundary, where they were positioned or their strategic plans. However, it would not
be appropriate to use this exemption simply to keep a contract for the purchase of an air force
fighter jet secret. This is common commercial information which should be made public to
reduce the likelihood of corruption tainting the procurement process, and should not be withheld
simply because it relates to defence.

 National Economic Interests: Disclosure of information about currency or exchange rates,

interest rates, taxes, the regulation or supervision of banking, insurance and other financial
institutions, proposals for expenditure or borrowing and foreign investment could in some cases
harm the national economy, particularly if released prematurely. However, lower level economic
and financial information, like contracts and departmental budgets should not be withheld under
this exemption.

 Relations with Foreign States: The relationship between countries can often be sensitive,
such that candid assessments and analysis of other countries' behaviour and policies could easily
offend and in so doing, damage India's own international interests. However, this exemption
should not be used simply to hide political deals between players, which are not in the public
interest and can never justify nondisclosure of information which discloses a breach of national
law.

 Law Enforcement and the Judicial Process: While an investigation is underway, there may
be information which needs to be protected, for example, witnesses identities or the case being
put together against a suspect. If released, the case could be jeopardized. Likewise, while a case
is underway, information may need to be kept secret. Notably, the discussions between a lawyer
and their client will almost always be kept secret, even if the lawyer is the Attorney-General and
the client is the Government. These exemptions should not be used though, to protect police and
judicial officers from having their own conduct scrutinized, particularly if a victim is seeking
information about whether their case is being/has been properly handled.

 Cabinet and Other Decision- Making Documents: Cabinet papers, including records of
deliberations of the Council of Ministers, Secretaries and other offices, are excluded, but once a
decision is made, the reasons for the decisions and the documents which were used to make the
decision should then be disclosed to the public. This is important because it means that during
the decision-making process there is a level of confidentiality, but once a decision is made the
public has a right to access relevant information so that they can better understand the policy-
making process.

 Trade Secrets and Commercial Confidentiality: Some information held by many private
companies should be open to the public, for example, where that information relates to the
provision of a public service or is necessary for the exercise or protection of a right. However, it
is already recognised in law that companies should be able to protect their trade secrets. Care
should also be taken to minimize the harm caused to a company's competitive commercial
interests when disclosing information, for example, by not publishing tender submissions during
a tender process. However, this exemption should not be used to block the release of contracts
with private bodies that are providing public services.

 Individual Safety: Obviously, information should not be disclosure where publication would
be likely to put an individual's safety or liberty at risk. For example, the identity of people who
"blow the whistle" on corruption inside their organisation should be protected, because otherwise
they may be targeted for discrimination or even violence.

 Personal Privacy: There is considerable information about individuals which is held by the
government. The right to privacy requires that the government should try to protect this
information from public disclosure, unless there is some overriding need for it to be disclosed.
For example, my next door neighbor should not be able to access my medical records just
because they are held by a government hospital. Notably though, public officials should not be
able to use this exemption to protect their own conduct in their official capacity from scrutiny.
Thus, information about public service transfers and appointments can be disclosed.

The Right to Information Act provides that certain sensitive information may be withheld
from the public, if the public authority in possession of the information thinks that the same is
likely to jeopardize either national interests or to violate the trade secrets. These exceptions are
found in primarily, in Sec. 8 and Sec. 9 of the RTI '05. However, contrary to the popular
conception, Sec. 7(9) is not an exception.

Section 8 lays down certain qualified exemptions, which are subject to the Public Interest
Test. Here, the public authority in possession of the information, must consider whether there is
greater public interest in disclosing the information or withholding the information (popularly
called- balancing the public interest or herein referred to as the Public Interest Test).
Surprisingly, the RTI '05 fails to mention anywhere the definition of a 'public authority'. This
term is not found defined in any freedom of information law of the world. Public Interest, in such
circumstances would hold the key while making the decision of whether the information is to be
withheld or disclosed. Public Interest, in the opinion of the Supreme Court of India has been
expressed by way of Supreme Court Guidelines for maintaining a Public Interest Litigation, 1998
and also in cases like Janta Dal v. VHS Choudhary , S P Gupta v. President of India , or State of
Gujarat v Mirzapur Moti Kureshi Kasab Jamat.

EXEMPTIONS

Further discussing the exemptions laid down in Sec. 8 of RTI '05, the deduction that all the
qualified exemptions can further be categorized into three:

a. Class Exemptions

Section 8 [1] (b), (e), (f), and (i) contains these exemptions. In these cases, the public
authority may not demonstrate any harm, but simply might show that the information is
exempted under the above mentioned clauses.

b. Prejudice based Exemptions

The degree of prejudice is not specified, so any level of prejudice might be argued.
However, less significant the prejudice is shown to be, the higher the chance of the public
interest falling in favour of disclosure of the information in question. Whether prejudice exists is
a matter of fact to be decided on a case to case basis. Section 8 [1] (a), (c), (d), (g), (h), and (j)
contains these exemptions.

c. Time limited Exemptions

Section 8 [3] imposes time limit on exemptions. Section 8 [1] (b), (d), (e), (f), (g), (h),
and (j) are time limited exemptions, which are no longer valid exemptions after 20 years from
the date of the record.

All the exemptions that are made by the Public Authority are discretionary and not
mandatory. The public authority may take such decisions as a matter of administrative discretion,
where they are not prohibited otherwise from doing so.

Sec. 9 of the RTI '05 lays down that any information, whose copyright is not held by the
state, cannot be provided by it under any circumstances. This exemption laid down in the RTI '05
is not a qualified exemption, but rather an absolute one. It is primarily intended to prevent misuse
of the RTI '05 by the Governmental agencies, especially in matters of infringement of copyright
and the like.
 Section 24 of the RTI '05 dictates that the intelligence and security organisations cannot
fall under the purview of this act. It also makes a statement to the effect that any information
given by such agencies to the Government too would be outside the scope of the applicability of
this act. These organizations are sought to be mentioned in Second Schedule of the RTI '05,
which has a comprehensive list of 18 different organizations. However, the Section also lays
down a proviso to prevent the basic aim of the act from being violated by declaring that
allegations of corruptions and violations of human rights cannot be excluded under this act.
Therefore, this section can be said to be the quintessence of the spirit of democracy as it provides
for information to the public, but at the same time, puts a reasonable limit in place over the same.

Under powers conferred by Section 24 (4) of the RTI '05, the only notification till date
has come from the Office of Governor of State of Tamil Nadu, dated 14 – 10 – 2005, and it reads
to exclude many of the Correcting Agencies of the State like Cyber Crime Cell, Idol Wing,
Police Radio branch, Costal Security Group, Finger prints bureau, etc.

OFFICIAL SECRETS ACT and RIGHT TO INFORMATION

The OSA '23 came into the news when the Government of India, through the CBI
decided to proceed in action against a former RAW Official V K Singh for not following the
guidelines under the same act (in 2007). In fact, the folly of the CBI in that particular matter
came to the fore almost immediately as a simple study of the provisions of law reviled that by
exposing corruption in RAW, no violation had been committed by the official. Further, the same
act had already been given the status of being "incongruous with the regime of democracy" by
the Administrative Reforms Commission in 2006 itself. The ARC had in fact suggested to the
Prime Minister in his report that suitable security measures could be implemented in the National
Security Act, and the OSA '23 could be scrapped altogether. Although the most popular case on
the conflict between OSA '23 and the RTI '05 would undoubtedly be Iftikhar Gilani case wherein
the journalist was falsely implicated of having classified information despite of the same being
freely available to public at large. This case was the pioneer in setting up the incongruence
between the OSA '23 and the RTI '05. Despite of various petitions to the President Of India, from
the Members of Parliament, Reporters of various media, etc, till date no decision has been taken
despite the victimization of various such prominent and intelligent officials.

Technically speaking, the OSA '23 is India's anti – espionage act which was acquired
from the British. It states clearly that any action which involves helping an enemy state against
India. It also states that one cannot approach, inspect, or even pass over a prohibited government
site or area. According to this Act, helping the enemy state can be in the form of communicating
a sketch, plan, model of an official secret, or of official codes or passwords, to the enemy. The
disclosure of any information that is likely to affect the sovereignty and integrity of India, the
security of the State, or friendly relations with foreign States, is punishable by this act. However,
in the OSA clause 6, information from any governmental office is considered official
information; hence it can be used to override freedom of information requests. This has drawn
harsh criticism. In fact, the Chief Information Officer of the Government of India has pondered
aloud over this issue by taking a stand against the Government of India, especially the CBI. In
his view, India being a democracy, public is the government and hence there cannot be any
protection offered by the OSA '23 to the Government from the public at large. He further
elaborates the law point by discussing the core of Section 8 (d), (e) and (j), wherein the
Information Officer on being satisfied that "public interest in disclosure outweighs the harm to
the protected interests" can issue even information held as secret under OSA '05.

However, there have been Constitutional Law experts from other countries who although
such an inconsistency is inevitable, there can be a action taken up by the judiciary on the issue
and the matter can be resolved on a prompt action basis. Otherwise, there might be more and
more cases wherein, the authorities will be at a loss to take decisions in favor of the public, thus
rendering the law laid down for their benefit as an ineffective statue.

Similarly, there are many who argue and view the Right to Information as a constitutional
right, by way of judicial amendment.15Discussing the scope of the notion of "judicial
amendment" it is worth noting that Justice Krishna Iyer along with Justice Tulzapurkar in the
case of Nandani Satpathy v. Dani (P.L.) and anr., have introduced the concept of 'judicial
amendment' and hence, the same is an acceptable proposition in the Indian Law. Moreover, it is
also observed that in the US / Canadian Law, amendment of the Constitution by the Judiciary is
not only acceptable, but also commended upon if worth its weight. Similarly, though the world's
biggest democracy does not have any statue on the provisions for sexual harassment of women at
workplace, the guidelines laid down in the groundbreaking judgment of Vishakha v/s State of
Rajasthan have been accepted and implemented, hence, the same concept of 'judicial amendment'
finds its place in the Indian jurisprudence as well.

Based upon this concept and the decision of the Hon'ble Supreme Court in Peoples Union
for Civil Liberties v. Union of India by observing that Right of information is a facet of the
freedom of 'speech and expression' as contained in Article 19(1) (a) of the Constitution of India,
as reiterated by the Court, we can conclude that the purview of Art. 19 (1)(a) read with Art. 21 is
wide enough to include the Right to information, and thus, the same is indisputably a
fundamental right. 20The supporters of this view point out that even the "basic structure" test
laid down in Keshavanada Bharti Case is satisfied, if the amendment of Right to Information as a
fundamental right is made as the same works in strengthening the democracy of the country
without derogating the basic features of the Constitution like judicial review, democracy or Rule
of Law. The OSA '23 is incongruous with the provisions of the RTI '05 as it violates a
fundamental right granted under Part III of the Constitution.

Considering the Right to Information as a constitutionally granted fundamental right, we

can also declare that the OSA '23 is thus, arbitrary with the basic fundamental principles laid
down in the Constitution of India and hence should be struck down, by the judiciary. However, if
it is not stuck down, the same will not be operative by the rule of 'doctrine of eclipse'22,
Speaking from the orthodox point of view, the doctrine of eclipse applies where a pre –
constitutional law under the provisions of the Government of India Act, 1935 and became invalid
on the coming of the Constitution of India.

On operation of the Constitution, a shadow falls on because it is inconsistent with the

Constitution. The act is eclipsed. The case is very much as was observed by the Supreme Court
in Bhikaji Narain Dhakras v. M.P., wherein, the Court while interpreting Article 13 of the Indian
Constitution relied upon the theory of eclipse and observed that the impugned unconstitutional
existing law is eclipsed for the time being by the fundamental right but is revived as soon as the
constitutional fetter is removed. However, the same is to be made applicable even to pre-
constitutional law in the broad outlook of post constitutional amendment, if the same is
implemented as suggested by various critics.

Unfortunately, although exemption provisions can serve a useful function, experience has
shown that they are often abused by officials who are determined to keep their actions hidden
from the public. This is not acceptable. Information should not be withheld just because it
'embarrasses' the government, or because it will get officials into trouble. Recognizing that
exemption clauses are often misapplied to protect government interests, it is important that the
citizens have a good understanding of the exemptions provisions that might apply to their
application so that they can check to see if they have been properly applied.
8. Write down the constitution of central information commission including the term of
office and conditions of service of commissioners. Also describe the powers and
functions of central information commission. Refer cases.

Central information commission

The Act provided for the constitution of the Central Information Commission (CIC) to be
responsible for the implementation of the Act, exercising powers conferred on it under Section
18 of the Act. The CIC, under this Section, consists of one Chief Information Commissioner,
who will head the Commission, and such number of Central Information Commissioners, as
may be deemed necessary, but not exceeding ten. On 26 October 2005, Mr. Wajahat
Habibullah became India’s first Chief Information Commissioner.
 Under the CIC, The Chief Information Commissioner enjoys complete financial and
administrative powers of a Department of the Government of India except in matters
relating to the creation of posts, re-appropriation and writing-off losses for which it needs
the specific concurrence of the Ministry of Finance.
 The general superintendence, direction and management of the affairs of the Commission
are vested in the Chief Information Commissioner, who is assisted by the Information
Commissioners.
CIC
The Chief Information Commissioner and Information Commissioners shall be appointed
by the President on the recommendation of a committee consisting of—Prime Minister as
Chairperson, the Leader of Opposition in the Lok Sabha; a Union Cabinet Minister to be
nominated by the Prime Minister.
 Commissioner and Information Commissioners shall be persons of eminence in public
life with wide knowledge and experience in law, science and technology, social service,
management, journalism, mass media or administration and governance.
 The Commissioner or a commission member shall not be a Member of Parliament or
Member of the Legislature of any State or Union territory.
 The Chief Information Commissioner shall hold office for a term of five years or after he
has attained the age of sixty-five years whichever is earlier.
 Every Information Commissioner shall hold office for a term of five years.
 Chief Information Commissioner shall be the same as that of the Chief Election
Commissioner; an Information Commissioner shall be the same as that of an Election
Commissioner: and receive salaries and allowances same as them.

Powers and Functions of CIC

The general superintendence, direction and management of the affairs of the Central
Information Commission vests in the Chief Information Commissioner assisted by the
Information Commissioners and exercises all such powers and do all such acts and things which
may be exercised or done by the Central Information Commission autonomously without being
subjected to directions by any other authority under this Act. Some of the major works are –
 To receive and inquire into complaints from any person relating to access to information
under the control of public authorities and to decide appeals against the decisions of
designated appellate officers.
 Powers to require the public authority to compensate the complainant for any loss or
other damage suffered.
 The decision of the Commission on an appeal is binding and is not subject to further
appeal in a court of law.
 Can make recommendations to public authoritiesnot conforming to the provisions or the
spirit of the Act.
 The Commission shall recommend to the Government every year, reforms on any “matter
relevant for operationalizing the right to access information”.
 While inquiring into a complaint it the same powers as of a civil court under the Code of
Civil Procedure, 1908, for the following purposes: enforcing the attendance of persons
and compelling them to give oral or written evidence on oath and to produce documents
or things; inspection of documents; evidence on affidavit; any public record or copies
thereof from any court or office; issuing summons etc.
 The Act mandates the CIC to submit Annual Reports to the Parliament.
State information commission and Commissioner
The State Information Commission is constituted by the State Government with one State Chief
Information Commissioner (SCIC) and not more than 10 State Information Commissioners (SIC)
to be appointed by the Governor. The Commission and commissioners exercises its powers
without being subjected to any other authority under RTI act 2005.
 The Appointments Committee is headed by the Chief Minister including the Leader of
the Opposition in the Legislative Assembly and one Cabinet Minister nominated by the
Chief Minister.
 The qualifications for appointment as SCIC/SIC shall be the same as that for Central
Commissioners.
 The salary of the State Chief Information Commissioner will be the same as that of an
Election Commissioner. The salary of the State Information Commissioner will be the
same as that of the Chief Secretary of the State Government.
Powers and functions of SIC
 The Central Information Commission/State Information Commission has similar duties
but at central level and jurisdictions.
  Have powers of Civil Courts similar to CIC such as – summoning and enforcing
attendance, receiving evidence on affidavit; requisitioning public records, issuing etc.
 The State Information Commission sends annual a report to the State Government.
Current Issues
At present, the RTI Act states that the Chief Information Commissioner and Information
Commissioners must be persons of eminence in public life with wide knowledge and experience
in law, science and technology, social service, management, journalism, mass media or
administration and governance.
The Supreme Court in September 2012 ruled that “only” serving and retired judges of
the apex court and chief justices of state high courts can head the Central and State
Information Commissions. Directing the Centre to amend the RTI Act in this regard, the court
stated that the functions of the Chief Information Commissioner and Information Commissioners
can be “better performed by a legally qualified and trained mind possessing the requisite
experience”.
It further ruled that lawyers with work experience of over 20 years will also be eligible
for appointment as a member and all such decisions will be taken after consultations with the CJI
and Chief Justice of the respective high courts.
The court passed the order on a PIL challenging the provisions of the Right to
Information Act, 2005 which enumerate the qualifications needed for appointment as members
to the commissions. As per the court, Information Commissions are “judicial tribunals” and need
to be manned by a person of judicial mind, expertise and experience in that field.